PROPERTY D SLIDES NATIONAL CHILI DAY

Thursday February 25 Music to Accompany E. 13 th Street (& Squatters Everywhere) Rent (Original Broadway Cast) (1996)

LOGISTICS: SIX CLASSES IN NINE DAYS –Make-Up Class Monday 7:55-9:20 Here –Adv Possession (Today  Tuesday) –Finish Layout & DQs by Monday (Move Discussion of Vezey to End of 5 Elements) –Rev Probs w Critiques Fri-Mon-Tues –Additional Rev Probs in DF Next Week –Chapter 4 Estates & Future Interests (Starts Monday) –Lot of Vocabulary –Point of Workbook is to do Simple Repetitive Problems to Help Memorize –Lot of Reading for Monday to Introduce You to Basic Concepts –Need to Get Through White, Mahrenholz, and short Problems 4A-4H next week –Generally –Panel Responsibilities Very Important Right Now –Sample Exam Answers: To Get Feedback on Two, First One Due Wed. of Spring Break

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use (cont’d) 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Acadia Rev. Prob. 3A: Everglades (In Class Today)

Acadia: “Actual Use” in the Cases: DQ3.06 Acadia Sunrise

Actual Use: DQ3.06 (Acadia) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Imagination Exercise Like Fact Research for Lawyering Q How Prove “Living” in Apts in Q? How Prove “Living” in Apts in Q?

Actual Use: DQ3.06 (Acadia) E. 13 th St.: Coalition of Squatters Possible Evidence of Actual Use Dissent: Improvements & Attempts to Preserve the Buildings/Units

Actual Use: DQ3.06 (ACADIA) Bell: Floating House & Shifting Outhouse Evidence of Actual Use? (We’ll Go Through Some Available Tests) 1.Cultivation, Improvements, Enclosure (& Residence)? 2.Activity Like Owners of Similar Property? 3.Fit Purposes of AP/Actual?

Actual Use: DQ3.06 Bell: Floating House & Shifting Outhouse Evidence of Actual Use? Cultivation, Improvements, Enclosure (& Residence) No Cultivation or Enclosure Improvements: Sauna, Woodsheds, Moving Outhouse Residence: Not Really; Lives on Houseboat Activity Like Os of Similar Property? Tricky. Fit Purposes of AP/Actual? Notice v. Labor/Connection

Actual Use: DQ3.06 Bell: Floating House & Shifting Outhouse Washington S.Ct. Decides Case on “Exclusive” Washington S.Ct. Decides Case on “Exclusive” Doesn’t Rule on “Actual Use” BUT Could Easily Have Held Insufficient Evidence Qs on “Actual Use” Element? [We’ll Come Back toVezey & DQ3.07]

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities Primary: Badlands Review Problem 3B (for Dean’s Fellow next week )

Open & Notorious: Background Important Distinction Actual Knowledge (Fact Q): Person in Q is Aware of Relevant Fact v. Actual Knowledge (Fact Q): Person in Q is Aware of Relevant Fact v. Notice (Legal Q): Under the Circumstances, Person in Q Should Be Aware of Relevant Fact Notice (Legal Q): Under the Circumstances, Person in Q Should Be Aware of Relevant Fact Notice “Ignorance of Law is No Excuse”: People Generally Considered to Have Sufficient Notice of What Law Is (Even if no Actual Knowledge) Notice You Are Supposed to Be Monitoring Your Own Property, so if Activity is Deemed “Open & Notorious”, You Are Treated as Having Notice of the AP Claim

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Florida Version: “Sufficient to put a person of Ordinary Prudence on Notice”

Adverse Possession Open & Notorious: Overview The Reasonable Man Ordinary Prudence

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Use Surface Common Test: “Use Visible to one on Surface of Property” APorUse Not Concerned with Visibility of APor but of Use Neighbors Not Concerned with Visibility by Neighbors (OK if behind wall/fence)

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Common Error: Concern re APor Sneaking or Hidden from Street See P119: Use should not be “surreptitious.” BUT even if APor acts “surreptitiously” (e.g., at night), still meet test if s/he leaves evidence of USE visible when APor absent (improvement; cultivation, etc.)

Adverse Possession Open & Notorious: Overview 1. Focus: Visibility/Notoriety to OO Checking Property Common Test: “Use Visible to one on Surface of Property” Many States also allow Many States also allow Evidence of Reputation in Community as Owner –OR-- Evidence of Reputation in Community as Owner –OR-- Availability of Info in Public Records Availability of Info in Public Records Traditionally: e.g., telephone directories Interesting Q might arise w Facebook Page

BADLANDS: “Open & Notorious” DQ NORBECK PASS

DQ3.08 (BADLANDS) Open & Notorious & AP Purposes Fit into AP Purposes? Purposes of APRole of Particular Element Repose Punish Sleeping OO Reward Beneficial Use/Labor Protect Connection/ Investment

DQ3.07 (BADLANDS) Open & Notorious & AP Purposes Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OOEnough Notice to Show that OO Who Misses is Truly Asleep Reward Beneficial Use/Labor Protect Connection/ Investment

Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: 1. Marengo Caves 2. Boundary Disputes & Small Overlap (e.g., 2 feet)

Open & Notorious: Hard Qs BADLANDS DQ3.10: Marengo Caves (P114-15) Describe Facts Why Was Use of Caves not “Open & Notorious”?

Open & Notorious: Hard Qs BADLANDS DQ3.10: Marengo Caves (P114-15) Upshot of Result Normal O&N: Q of notice not actual knowledge Comes from responsibility to monitor land Marengo Seems to require actual knowledge for underground AP. Means normal responsibility to monitor surface doesn’t apply underground Pros & Cons of Result?

Open & Notorious: Hard Qs BADLANDS DQ3.10: Marengo Caves (P119-20) Case Means Normal Responsibility to Monitor Surface Doesn’t Apply Underground Facts Missing from Note in Textbook APor had Given Tours of Caves for 46 Years (Well-Known; Big Signs) OO had Taken Tour of Caves Himself Modern Commentators Suggest Result is Wrong Hard to See What More APor Could Do On Test, Can Treat as Non-Binding Authority

Adverse Possession Open & Notorious: Overview Easy Qs/Hard Qs Easy YES: Hard to Lose on O&N if “Actual Use” Hard Qs: 1.Marengo Caves 2.Boundary Disputes & Small Overlap (e.g., 2 feet) Issues Similar to Underground re Notice v. Knowledge See Review Problem 5B (Short Problem for DF Next Week) See Review Problem 5H (Opinion/Dissent for Your Review)

BADLANDS DQ3.08: Open & Notorious Evidence Lutz: Garden of Great Depression Pretty Easy Case: Lots Visible Crops w Boundary Logs, Shack, Garage Plus Reputation Evidence Bell: Floating House & Shifting Outhouse Existence of Small Buildings Unrelated to OO Moving Outhouse Might Help for Periods He’s in Residence in Houseboat

BADLANDS DQ3.08: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On?

BADLANDS DQ3.08: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Court: “Constant & Conspicuous Use” Evidence Relied On: Lots!! Visible on Surface: Residence; No Trespass Signs; Bars, Shutters, Padlocks on Cottage; General Maintenance; Comparison to Rest of Community Less Obvious (all forms of Public Record): Payment of Taxes & Insurance; Enforcement ag. Trespassers; Voting Address

BADLANDS DQ3.08: Open & Notorious Evidence Ray: Creepy Summers in Empty Resort Lower court found element of “continuity” not met; thrust was that one month/year insufficient Court of Appeals discussion of evidence really encompasses “actual” & “open & notorious” & “continuous.” Implicitly saying: Incorrect to focus on one month a year for “continuous.” Ps’ use met Actual + O&N because of range of visible and other evidence present all year round.

BADLANDS DQ3.11: Open & Notorious Evidence E. 13 th St.: Coalition of Squatters No Real Discussion of Element in Case Problem: Sometimes Use Apparent, Sometimes Not Could Characterize Problem 2 Ways Not Open & Notorious Not Continuous

BADLANDS DQ3.11: Open & Notorious Evidence E. 13 th St.: Coalition of Squatters Sometimes Use is Apparent, Sometimes Not Could Address as O&N or as Continuous cf. Ray on Gaps in Time: Maybe View as: Summer Use = Normal Use (~Continuity Q) Evidence of Use Even When Gone (~O&N Q) Qs on “Open & Notorious” Element?

Review Problem 3B: Open & Notorious Element Arguments in DF Next Week Incorporates Hard Policy Qs Should OO of Large Wooded Lot Be Responsible for Knowing Where Boundary Lines Are?Should OO of Large Wooded Lot Be Responsible for Knowing Where Boundary Lines Are? If Encroachment Over Boundary Line is Slow Growth Over Extended Time, When (if Ever) Does It Become O&N?If Encroachment Over Boundary Line is Slow Growth Over Extended Time, When (if Ever) Does It Become O&N?

ELEMENTS OF ADVERSE POSSESSION Our Sequence 1. Actual Use 2. Open & Notorious 3. Exclusive 4. Continuous 5. Adverse/Hostile Panel Responsibilities General: OLYMPIC Rev. Prob. 3D (Tomorrow) BADLANDS (for Ptff Nicole) OLYMPIC: (for Dfdt Dolly) ACADIA: (Critique Due Sunday Noon)

Adverse Possession Exclusive: Overview Focus: Use by Others Beside APor. Two Issues (We’ll Do Separately) 1.More Common Issue: Also use by OO (Today) 2.Less Common Issue: Also use by other third parties (non- owners) (Tomorrow)

Exclusive (Use by OO) Overview More Common Issue: Use by OO Focus/Relevant Evidence: What did OO do on claimed land during AP period

Exclusive (Use by OO) Overview Fit into AP Purposes Purposes of APRole of Particular Element Repose Punish Sleeping OOOO not sleeping if using claimed land. Reward Beneficial Use/Labor Protect Connection/ Investment

Exclusive (Use by OO) Overview: Easy Qs Easy Cases YES: No use at all by OO during relevant period (Lutz; Ray; Bell) Easy Cases NO: literally If court treats requirement “literally,” any knowing use by OO defeats AP NY Case (S51): 3 Weeks Storage of Construction Materials Defeats Exclusivity Note re Lawyering Note re Strong Anti-AP Approach

Adverse Possession Exclusive (Use by OO): Hard Qs 1.Use by OO, but Not as Owner OO unaware of own interest OO acting with permission of APor. 2.Short/Partial/Ineffective Assertions of OO Rts

Adverse Possession Exclusive (Use by OO): Hard Qs 1.Use by OO, but Not as Owner 2. Short/Partial/Ineffective Assertions of OO Rts a.Note 10 (P118): OO Generally Can Break Exclusivity by i.Physically Excluding APor; OR ii.Suing to Recover b.BUT b.BUT Physical exclusion usually insufficient if doesn’t really exclude APor for significant period of time (arguably true in “Rent” and E.13 th Street)

Adverse Possession Exclusive (Use by OO): Hard Qs 1.Use by OO, but Not as Owner 2. Short/Partial/Ineffective Assertions of OO Rts a.Ineffective attempts to bar entry. b.[When] should limited acts by OO be enough? Policy Q I like!! E.g., Use of road on edge of 100 acre lot (Rev Prob 3C) c. See Miller in Note on S51: Overhanging eaves allowed owner to keep just area under eaves, not whole lot. Could suggest as solution for other cases with small OO use.

OLYMPIC: “Exclusive” & the Penn. Statute DQ3.15 EEL GLACIER

OLYMPIC: DQ3.15 Exclusive & Penn. Statute §5530(B) toll No entry upon real property shall toll the running of the period of limitation specified [21 years], unless a possessory action shall be commenced therefor within one year after entry. What does “toll” mean here? Effect of this provision? Purpose of this provision? Good idea? Qs on Exclusivity (Use by OO)

Rev. Prob. 3C: (Exclusive: Use by OO) Lot in Q = Farm that is square one-half mile on each side. OO (Kindon) purchases in 1992; no visits or activity until APor (John) Purchases w Good Faith Color of Title in 1992 Moved onto lot (10/1/92); grew plants for resale for 10-year AP period. 8/02: OO decides to use lot as horse farm; hires G as agent G hired workers who built 1/2-mile fence just inside property line. Fence complete in late Sept.; G inspects lot & finds J & business. G tells K a few days later; K files ejectment action on 10/5/02 Lawsuit too late unless earlier use broke exclusivity

Rev. Prob. 3C: OO Only Use: Hired workers who built 1/2- mile fence just inside property line on 100 Acre lot in last 2 months of Adv. Poss. Period (Very Hard to Resolve from Your Materials) Arguments/Missing Info? If jurisdiction accepts literal argument, OO wins. Assume it doesn’t 1.Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to other side’s claims. 2.Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element. 3.Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

Rev. Prob. 3D (Tomorrow) BADLANDS (In-Class for Plaintiff N) OLYMPIC (In-Class for Defendant D) ACADIA (Critique) Arguments/Missing Info? (Same List for Both 3C & 3D) If jurisdiction accepts literal argument, OO wins. Assume it doesn’t 1.Which facts in the problem (other than the passing of time) are helpful for each side? Be prepared to respond to other side’s claims. 2.Discuss whether a court should consider what OO has done enough in light of the policies implicated by this element. 3.Identify possible additional facts or legal rules (that are not inconsistent with what I’ve told you) that might affect the outcome.

EVERGLADES: Review Problem 3A EGRET IN MANGROVE SWAMP

EVERGLADES Review Problem 3A: “Actual Use” Element Facts: AP Lives Next to Vacant Lot Initially: Stone walls on 3 sides; graffiti; garbageInitially: Stone walls on 3 sides; graffiti; garbage AP repaints walls; removes garbage; plants hedge across 4th side of lot.AP repaints walls; removes garbage; plants hedge across 4th side of lot. For 10Y: AP washes off new graffiti, removes garbage; trims hedge.For 10Y: AP washes off new graffiti, removes garbage; trims hedge. Just looking at Actual Use; assume other elements met.Just looking at Actual Use; assume other elements met.

EVERGLADES Review Problem 3A: “Actual Use” Element Arguments/Missing Facts? 1.Cultivation, Improvements, Enclosure a.Enclosure Separately b.All Three Together 2.Activity Like Owner of Similar Property? 3.Activity Meet Purposes of AP/Actual Use?